Appellant was convicted in the 37th District Court, of Bexar County, of the offense of embezzlement of property of the value of more than fifty dollars, and his punishment was fixed at two years confinement in the State penitentiary.
Appellant urged various objections to the indictment in this case, none of which we think are sufficient. Aritcle 1416, Vernon's Penal Code, which names those persons who may be held guilty of embezzlement from a corporation, enumerates "any officer, agent, clerk, attorney at law or in fact." The word "employee" is not used in this connection in the statute, and we infer that the trial court, in passing upon this motion to quash, held that the use of the word "employee" was surplusage where it occurred in said indictment. The accused was indicted for embezzlement, it being alleged that he was a clerk and employee of the Brown Cracker and Candy Company, a corporation.
The capacity in which the accused was acting for his employer, when the property came into his possession, in an embezzlement case, must be alleged in such manner as to bring it within the terms of the statute. In the instant case, the allegation that appellant was the clerk of the Brown Cracker and Candy Company, a corporation, is an allegation of a capacity named, and is, therefore, sufficient under the statute. Likewise, we think the further allegation in the indictment, that the property of said corporation alleged to have been embezzled, "came into the possession, and was then and there under the care of the said E.L. Miller by virtue of his said employment and relation as . . . clerk . . . as aforesaid," was a sufficient charging that a fiduciary relationship existed, and that it was appellant's duty to receive and care for said money.
There are a great many errors complained of in the able brief filed by appellant's counsel, but in our view of the case, it is only necessary to notice some of the more important ones presented. A careful examination of the statement of facts discloses that the manager of the Brown Cracker and Candy Company, at San Antonio, under whom appellant worked for a number of years, testified in so many words that appellant never did work for the Brown Cracker and Candy Company in the capacity of clerk. All the witnesses spoke of appellant as the cashier or bookkeeper. While a cashier might be included under the term "agent," and in some instances might be an officer of a corporation, we are unable to find anywhere that he is classed as a "clerk." The designation of appellant in the indictment as an "employee" having been eliminated as surplusage, and the evidence failing to support the allegation of "clerk," there would seem to be a fatal variance between the proof offered and the allegations of the indictment. If one be charged as a "clerk," and *Page 73 the proof entirely rebut the proposition that he was ever employed in such capacity, we have no alternative but to hold that the pleading and the proof do not correspond.
On the trial, much testimony was offered in behalf of the State, showing other transactions on the part of the appellant of like kind as the one charged in the instant case. This was objected to. We think there was no error in admitting proof of those transactions. By vigorous cross-examination of other employees of the said corporation, as to their access to the books, and their opportunity to get the money, the embezzlement of which is charged against appellant; their need of such property; the character and amount of their investments, etc., were brought out by appellant, manifestly to create the impression upon the jury of the improbability of appellant's connection with the appropriation of the property, and suggesting the appropriation thereof by such other employees. We think further that the very nature and character of the employment of the appellant, and of the circumstances surrounding the transaction and necessarily relied on by the State to make its proof of guilt, would make proof of other similar transactions admissible. Said corporation did a large business locally, and in its trade territory. Large sums of money, both cash and checks, came into appellant's hands, and after proper entry, endorsement, etc., should have gone to the bank to the credit of said corporation. Appellant kept the books, and had charge of the moneys received, made out the deposit slips, kept the bank books, and except when an auditor came at intervals of some months, and checked the books, no one took actual oversight of the actions of appellant in the performance of his duties. In a business so conducted, one occupying a position such as appellant, might easily mislay a check, or overlook an entry, or erroneously O.K. a miscalculated collection slip turned in by a driver, and thus be guilty of no wrong should an error be discovered, but proof of the continuation of such happenings might rebut any presumption of innocence as to one independent transaction. Again, when appellant left the employ of said corporation without any notice to them, he seems to have left the State. No charge had been made against him; no suspicion attached to him; no property of said company was found on him when arrested, and practically all the proof offered against him, was the manipulation of the books, cash account, checks, etc., of which he had charge before leaving. In order to show intent or guilty knowledge, we think evidence of such other transactions was admissible, subject to proper instruction in the charge, as to the purpose of such testimony, and that before the jury could consider any of said transactions as evidence, they must believe beyond a reasonable doubt that defendant's guilt in such transactions was shown. See Section 166, Branch's Ann. P.C pp. 622-623; Vernon's C.C.P. for authorities; Fry v. State, 86 Tex.Crim. Rep., 215 S.W. Rep., 560. *Page 74
The State proved over objection, the contents of two letters found in appellant's trunk when arrested in California. Said letters were shown to be in appellant's handwriting. They were neither dated, signed, nor addressed. Nothing in either referred to any of the facts of any transaction transpiring while appellant was employed by the Brown Cracker and Candy Company. Not a word in either of said letters, so far as we are able to see, related to any transaction under investigation. We think the letters were inadmissible.
An exception was taken to the court's failure to charge on circumstantial evidence. We think such charge should have been given. No one saw this appellant appropriate this money. No confession or admission of his appears in the record to take the case out of the rule of circumstantial evidence. He had the lawful charge of money and property prior to his disappearance, and after he had gone, by the process of checking and auditing, it was discovered that shortages existed. The State claimed that appellant was the party responsible for these shortages. Appellant pleaded not guilty to the charge. The issue in the case then became the unlawful conversion by appellant of money belonging to his principal, and to establish this conclusion, the State introduced a number of facts, from which the guilt of the accused might be inferred, but no positive proof thereof. If the main fact sought to be proved is a matter of inference, the case was one of circumstantial evidence under all the authorities. Ward v. State, 10 Texas Crim. App., 513; Lee v. State, 14 Texas Crim. App., 217; Matthews v. State, 17 Texas Crim. App., 475; Fuller v. State, 24 Texas Crim. App., 597; Pace v. State,41 Tex. Crim. 208; Jones v. State, 54 Texas Crim. App., 37; Stewart v. State, 71 Tex.Crim. Rep., 160 S.W. Rep., 381.
This disposes of the material issues raised in this appeal. For the errors mentioned, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ON REHEARING. December 1, 1920.